DLD-234

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-3384
___________
NORMAN L. SCOTT,
Appellant
v.
BRIAN L. CALPIN, Esquire
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1-08-cv-04810)
District Judge: Honorable Rene Marie Bumb
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 9, 2013
Before: AMBRO, SMITH and CHAGARES, Circuit Judges
(Opinion filed: June 10, 2013)
_________
OPINION
_________

PER CURIAM
In this legal malpractice action, Norman L. Scott appeals pro se from an order of the
United States District Court for the District of New Jersey granting summary judgment in favor
of Brian L. Calpin, the attorney who represented Scott in divorce proceedings. For the reasons
that follow, we will summarily affirm the District Courts judgment.

Because we write primarily for the parties, we need only briefly review the underlying
facts, which were aptly set forth in the District Courts Opinion. In 2006, Scott filed a divorce
action in the Superior Court of New Jersey. Among other issues, the parties disputed whether
a house that they shared was subject to equitable distribution. Shortly after Scott hired Calpin,
the parties reached a settlement. Under its terms, Scott was to receive $8500 from the sale of
the home, a sum that was apparently based on the premise that the house was not subject to
equitable distribution. The settlement was entered on the record by the state court.
Approximately one year later, Scott filed a complaint in District Court, alleging that, as
a result of Calpins deficient representation, he did not receive an equitable share in the
proceeds from the sale of the house. As relief, Scott demanded $250,000. In support of his
claim, Scott submitted an affidavit of Bruce P. Friedman, a family law attorney admitted to
practice in Pennsylvania. Friedman stated that he had reviewed extensive materials related
to the case, determined that the home should have been deemed marital property subject to
equitable distribution, and concluded that Scott suffered extensive financial losses . . . as a
consequence of Calpins representation. After unsuccessfully arguing in a motion to dismiss
that Friedmans affidavit should be rejected because he was not licensed to practice law in
New Jersey, Calpin filed a motion for summary judgment.1 Scott did not offer any material

After Calpin filed this motion, the District Court ordered the parties to address the
applicability of Puder v. Buechel, 874 A.2d 534, 540 (N.J. 2005) (holding that a clients
declaration of satisfaction with the fairness of a settlement precludes a later legal malpractice
action based on that settlement), and Gere v. Louis, 38 A.3d 591 (N.J. 2012) (distinguishing
Puder on its facts). Ultimately, the District Court stated that it was uncertain as to the
continued validity of Puder in light of Gere[,] but noted that summary judgment was
appropriate regardless of Puders applicability.
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evidence in opposition to Calpins summary judgment motion. The District Court granted that
motion, holding that Scott failed to establish the proper standard of care, or how [Calpin]
deviated from it, through an expert report, as required. Scott appealed.
The District Court had diversity jurisdiction under 28 U.S.C. 1332 and we have
jurisdiction under 28 U.S.C. 1291. We exercise plenary review over the entry of summary
judgment. Doe v. Luzerne Cnty., 660 F.3d 169, 174 (3d Cir. 2011). In doing so, we draw all
reasonable inferences from the record in favor of the non-moving party and will affirm if there
is no genuine issue as to any material fact and the moving party is entitled to judgment as a
matter of law.2 Fed. R. Civ. P. 56(a); Kaucher v. Cnty. of Bucks, 455 F.3d 418, 422-23 (3d
Cir. 2006). Summary judgment must be granted if the evidence of negligence is too
speculative to establish any material issue of fact. Zimmer Paper Prods., Inc. v. Berger &
Montague, P.C., 758 F.2d 86, 94 (3d Cir. 1985).
The New Jersey Affidavit of Merit statute requires a plaintiff alleging malpractice by a
licensed professional to provide each defendant with an affidavit of an appropriate licensed
person that there exists a reasonable probability that the care, skill or knowledge exercised or
exhibited in the treatment, practice or work that is the subject of the complaint, fell outside
acceptable professional or occupational standards or treatment practices. N.J. Stat. Ann.
2A:53A-27. The Affidavit of Merit statute must be applied by federal courts sitting in
diversity. Chamberlain v. Giampapa, 210 F.3d 154, 157 (3d Cir. 2000). The statute is not a
pleading requirement, however, and exists to provide expert verification of the merits of the

We agree with the District Courts implicit determination that New Jersey law applies in this
diversity action.
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assertions in the complaint so that malpractice claims for which there is no expert support will
be terminated at an early stage in the proceedings. Nuveen Mun. Trust ex rel. Nuveen High
Yield Mun. Bond Fund v. WithumSmith Brown P.C., 692 F.3d 283, 303 (3d Cir. 2012)
(quoting Chamberlain, 210 F.3d at 160).
Scott does not challenge the District Courts conclusion that [t]his is not a case where
the malpractice alleged is so obvious as to obviate the need for an expert report. See Hubbard
v. Reed, 774 A.2d 495, 499-500 (N.J. 2001) (holding that no affidavit of merit need be filed in
common knowledge malpractice cases). Instead, Scott argues that the District Court erred in
effectively holding that the Friedman affidavit of merit was insufficient to defeat Calpins
motion for summary judgment. In support of his argument, Scott emphasizes that the District
Court, in denying Calpins motion to dismiss, stated that Scott has satisfied the Affidavit of
Merit Statute. That statement was made, however, in response to Calpins argument that
Friedman was not a licensed person, as that term is defined in the Affidavit of Merit Statute.
See N.J. Stat. Ann. 2A:53A26(c) (providing that a licensed person means any person
who is licensed as . . . an attorney admitted to practice law in New Jersey). Importantly,
however, whether the Friedman affidavit of merit could be rejected for failing to satisfy the
requirements of 2A:53A26(c) is separate from the issue whether the information in that
affidavit was sufficient to defeat a motion for summary judgment.
After a thorough review of the record, we agree with the District Courts determination
that there was no genuine issue of material fact concerning Scotts legal malpractice claim. In
New Jersey, the elements of a legal malpractice claim are: (1) the existence of an attorneyclient relationship creating a duty of care by the defendant attorney, (2) the breach of that duty
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by the defendant, and (3) proximate causation of the damages claimed by the plaintiff.
McGrogan v. Till, 771 A.2d 1187, 1193 (N.J. 2001) (citing Conklin v. Hannoch Weisman, 678
A.2d 1060, 1070 (N.J. 1996)). In Lentino v. Fringe Employee Plans, Inc., 611 F.2d 474, 481
(3d Cir. 1979), we held that the plaintiff in a legal malpractice action bears the burden to
establish the appropriate standard of care with expert evidence.3 Once the defendant alleges
that his conduct comported with the applicable standard of care, the plaintiff must present
expert evidence demonstrating that the defendants conduct failed to meet that standard. Gans
v. Mundy, 762 F.2d 338, 343 (3d Cir. 1985); see also Waterloov Gutter Prot. Sys. Co, Inc., v.
Absolute Gutter Prot., L.L.C., 64 F. Supp. 2d 398, 427 (D.N.J. 1999) (holding that no question
of material fact was created where the expert testimony provided by the [party claiming legal
malpractice] does not establish what [the attorneys] duty of care was under the circumstances
of this case.).
Here, Scott complained that Calpins representation, as it pertained to allocating the
equity in the home, permitted the settlement of the divorce action for less than it should have
been settled for without trial.4 In response, Calpin averred that his conduct comported with

Expert evidence is not required if the lack of skill is so obvious as to be within the range of
the ordinary experience and comprehension of non-professional persons. Lentino, 611 F.2d at
481; see also Farrell v. Janik, 542 A.2d 59, 63 (N.J. Super. Ct. Law Div. 1988) (noting that,
under Lentino, expert testimony is not necessary if the issue of responsibility is . . . a matter of
common knowledge . . . within the ken of a layperson). As noted above, there is no dispute
here that an expert report was required.
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Scott attempted to raise several related claims, including an allegation that Calpin had a
conflict of interest, in his opposition to the motion for summary judgment. The District Court
refused to consider claims not raised in the complaint, and we conclude that this was not an
abuse of discretion. See Cureton v. Natl Collegiate Athletic Assn, 252 F.3d 267, 273 (3d Cir.
2001).
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the applicable standard of care. In particular, Calpin noted that, prior to the settlement, a state
judge in the divorce proceedings determined that the house was not subject to equitable
distribution because it had been purchased by Scotts wife prior to their marriage. Therefore,
Scott was entitled to, at most, 15% of the proceeds from the sale of the house, which was
intended to compensate him for various home improvements that he made. Calpin explained
that, under these circumstances, it was impossible for [Scott] to receive 50% of the equity in
the . . . residence. At the settlement hearing, Scott confirmed that he thought the agreement
was fair, that Calpin had spoken with him at significant length about [the] case, and that he
was not placed under duress to accept the settlement.
The Friedman affidavit of merit was the only evidence submitted by Scott regarding the
applicable standard of care. In that affidavit, Friedman stated that Mr. Calpin failed to
provide appropriate representation within the acceptable standard of care required of attorneys
representing clients in divorce and equitable distribution proceedings . . . . Significantly,
however, Friedman failed to describe that standard of care or explain Calpins relevant duty
under it. Instead, Freidman merely opined that I do not believe that counsel advised [Scott] of
all the factors that would be looked at by the court in making a determination of equitable
distribution . . . . But Friedman provided no basis for this belief. Indeed, as the District Court
noted, Friedmans assertions lack factual support in the record. See Pa. Dental Assn v.
Medical Service Assn of Pennsylvania, 745 F.2d 248, 262 (3d Cir. 1984) (stating, in
evaluating order granting summary judgment, that the factual predicate of an experts opinion
must find some support in the record.); see also Major League Baseball Propr., Inc. v.
Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008) (stating that [a]n experts opinions that are
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without factual basis and are based on speculation or conjecture are . . . inappropriate material
for consideration on a motion for summary judgment.). Finally, although Friedman states that
he reviewed documents related to the case, he identifies only two, the Sellers Residency
Certification/Exemption [and the] Final Judgment of Divorce. Critically, however, he does
not explain how those documents establish that Calpin breached the standard of care. See
Zimmer, 758 F.2d at 94 (stating that [w]e must view the evidence [plaintiff] has presented in
light of the absence of a proffer of any standard of care in the legal profession.).
Because Scott failed to create a factual dispute as to the applicable standard of care,
Gans, 762 F.2d at 343, the District Court properly granted Calpins motion for summary
judgment. Accordingly, we will summarily affirm the District Courts judgment.